Law Commons^™

The Restatements And The Rule Of Law, Kristina Daugirdas

Book Chapters

This chapter explores the promotion of the rule of law. In drafting and publishing Restatements of Foreign Relations Law, both the American Law Institute and the reporters have understood the projects as contributing to the rule of law at the international level, at the domestic level, or both. There are at least three distinct ways that these Restatements might promote the rule of law. First, they might do so by clarifying the content of the law. Second, the Restatements might contribute to the development of new legal rules, specifically to the evolution and consolidation of customary international law. Finally, the …

The Use Of Soft Law In The Creation Of Legal Norms In International Commercial Law: How Successful Has It Been?, Henry Deeb Gabriel

Michigan Journal of International Law

In this Article, I examine several interrelated points. After defining soft law in Part II, I briefly set out some of the assumed advantages soft law instruments may have over legislation and regulations in Part III. In Part IV, I examine why some soft law instruments in international commercial law have been successful in creating international legal norms. In this Part, I specifically examine the UNIDROIT Principles of International Commercial Contracts to show how one might gauge success by looking beyond the express purpose of the instrument. I also compare the UNIDROIT Principles of Commercial Contracts with the American Law …

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Articles

The importance of liability law to the American system of justice, and to the US economy in general, are well known. Somewhat less well known, at least among non-lawyers, is the corresponding centrality of liability insurance. For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. Such coverage, provided by state-regulated insurance companies, ranges from auto and homeowners’ policies (sold to consumers throughout the country) to commercial general liability policies (sold to businesses of all sizes) to professional liability policies of various sorts (including Directors and Officers coverage …

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …

Restoring Restitution To The Canon, Douglas Laycock

Michigan Law Review

The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it. Credit for this Restatement goes to its Reporter, Professor Andrew Kull. Of course his work benefited from the elaborate processes of the American Law Institute, with every …

Working Group On Chapter 1 Of The Proposed Restatement Of Employment Law: Existence Of Employment Relationship, Dennis R. Nolan, Theodore J. St. Antoine, Joseph E. Slater, Alvin Goldman

Articles

This article presents a critique of chapter 1 of the Proposed Restatement of Employment Law. The critique is organized to follow the organization of the proposed Restatement, which begins with a provision of black letter law, a series of comments and illustrations explaining the meaning and application of the black letter law, and the reporters' notes providing support for the black letter law and the commentary. This critique will follow that structure, with each part focusing on a section of the chapter: the introductory note; section 1.01; section 1.02; section 1.03; and section 1.04. The subdivisions of the parts will, …

Theory Wars In The Conflict Of Laws, Louise Weinberg

Michigan Law Review

Fifty years ago, at the height of modernism in all things, there was a great revolution in American choice-of-law theory. You cannot understand what is going on in the field of conflict of laws today without coming to grips with this central fact. With this revolution, the old formalistic way of choosing law was dethroned, and has occupied a humble position on the sidelines ever since. Yet there has been no lasting peace. The American conflicts revolution is still happening, and poor results are still frustrating good intentions. Now comes Dean Symeon Symeonides, the author of the choice of- law …

A New Legislation: Remarks On The Draft Restatement Of Products Liability, Marshall S. Shapo

University of Michigan Journal of Law Reform

This being a law school in a university, I would like to begin my discussion of the present draft not with doctrinal analysis, but rather by attempting to frame the question from a broader set of perspectives. I shall draw on the intricate relations of law with the society it governs and the reflection of those relations in the literature that remains at the heart of great universities.

Risk-Utility Balancing In Design Defect Cases, David G. Owen

University of Michigan Journal of Law Reform

Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

Liability Of Suppliers Of Natural Raw Materials And The Restatement (Third) Of Torts: Products Liability- A First Step Toward Sound Public Policy, M. Stuart Madden

University of Michigan Journal of Law Reform

From its inception, the law governing liability for damage or injuries caused by defective products has pertained to potential liability for products that have been processed, finished, or fabricated. Naturally occurring raw materials, for the most part, have been considered beyond doctrinal concern, largely because characterizing a merchantable raw material, such as copper or pigiron, as defective is conceptually difficult. Nevertheless, certain doctrines that developed for the application of products liability to other products have gained sporadic application to naturally occurring raw materials, including the sophisticated purchaser defense, the bulk supplier defense, and the ingredient supplier defense. Madden argues that …

Inadequate Product Warnings And Causation, Mark Geistfeld

University of Michigan Journal of Law Reform

The market failure that provides an economic justification for imposing tort liability on product sellers for design and manufacturing defects also justifies tort liability for inadequate warnings. In general, the liability standards proposed in the most recent draft of the Restatement (Third) of Torts: Products Liability have the potential to remedy this market failure, although this purpose is not furthered by the Draft's requirement that plaintiffs prove that an adequate warning would have prevented the injury. Unless courts presume causation (as most currently do), sellers will not have sufficient incentive to warn about unavoidable product risks. Moreover, there is no …

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

Design Defects Under The Proposed Section 2(B) Of The Restatement (Third) Of Torts: Products Liability- A Judge's View, William A. Dreier

University of Michigan Journal of Law Reform

The proposed section 2(b) of the Restatement (Third) of Torts: Products Liability has caused a great deal of controversy, and many are concerned that this section represents a radical change in the law. This Article explains that section 2(b) in fact provides a pragmatic, workable tool for judges and attorneys to explain and prove a manufacturer's liability for a defective product. It sheds much of the baggage of the Restatement (Second) of Torts section 402A and its commentaries, yet preserves the essence of the theory behind section 402A. The criticisms of the new language are adequately met in the comments, …

Timmy Tumble V. Cascade Bicycle Co.: A Hypothetical Case Under The Restatement (Third) Standard For Design Defect, Hildy Bowbeer, Todd A. Cavanaugh, Larry S. Stewart

University of Michigan Journal of Law Reform

These briefs were written for a hypothetical design defect case. Bowbeer and Cavanaugh argue for, and Stewart argues against, the adoption of the Restatement (Third)'s reasonable alternative design standard and the rejection of the Restatement (Second)'s consumer expectations test in the hypothetical State of Hutchins. The authors discuss the relative merits of the two tests, as well as the status to be accorded to Restatement standards in general. To do so Bowbeer, Cavanaugh, and Stewart rely upon precedent from other jurisdictions, one hypothetical Hutchins case, and various policy arguments advanced in the deliberations about adopting the new Restatement. In …

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron D. Twerski

University of Michigan Journal of Law Reform

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement in American products liability case law and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve …

Constructing A Roof Before The Foundation Is Prepared: The Restatement (Third) Of Torts: Products Liability, Section 2(B) Design Defect, Frank J. Vandall

University of Michigan Journal of Law Reform

The Restatement (Third) of Torts: Products Liability section 2(b) is a wish list from manufacturing America. It returns products liability law to something more restrictive than negligence. What is new from the Reporters is that their proposal is written on a clean sheet of paper. Messy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform. There has been almost no attempt to evaluate strict liability precedent or the policies underlying previous cases and the Restatement (Second) section 402A. Section 2b (the roof) has been drafted with little consideration of …

Risk-Utility Analysis In The Failure To Warn Context, Paul D. Rheingold, Susan B. Feinglass

University of Michigan Journal of Law Reform

Elsewhere in this Symposium issue, Professor Mark Geistfeld presents an argument favoring the application of risk-utility analysis to the duty to warn doctrine encompassed by the Restatement (Third) of Torts. In addition, the comments and the reporters' notes to the Restatement (Third) suggest altering the traditional duty to warn if the warning would cause "information overload," if the danger is "open and obvious," or if the danger applies to only a small percentage of potential customers.

In response to Geistfeld and the Restatement (Third) comments and notes, Rheingold and Feinglass assert that applying a risk-utility analysis or altering the …

Two Important Books On Res Judicata, Robert C. Casad

Michigan Law Review

A Review of Federal Practice and Procedure, Volume 18: Jurisdiction and Related Matters by Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, and Restatement of the Law Second: Judgments 2d

Defamatory Opinions And The Restatement (Second) Of Torts, George C. Christie

Michigan Law Review

This Article will focus on one important aspect of the Institute's work: the question of whether opinion, including ridicule, can be an independent basis of an action for defamation. Before undertaking that inquiry, however, some basic concepts regarding defamatory opinions must be understood. First, a statement of opinion can, of course, often be reasonably construed to imply the existence of facts that would justify the opinion. If a direct statement of those facts would be defamatory, then the statement of an opinion that implies the existence of those false facts would be defamatory and capable of supporting an action for …

Private Trusts For Indefinite Beneficiaries, George E. Palmer

Michigan Law Review

Recently, in McPhail v. Doulton (In re Baden's Deed Trusts), the House of Lords reached a decision that marks an important change in the English law of trusts which could be important also for American law. It held that there is a single test of validity for private trusts and for powers of appointment where the issue is whether the beneficiaries of the trust or the objects of the power are sufficiently definite, and that this single test is that applicable to powers of appointment. For nearly 170 years, since the decision in Morice v. Bishop of Durham, …

Trusts-Restated And Rewritten, Harry W. Vanneman

Michigan Law Review

Two books were published during the past year which are of the greatest importance to those of the legal profession who are interested in the law of trusts. Professor Bogert's seven volumes appeared first, followed shortly by The Restatement of the Law of Trusts by the American Law Institute, of which Professor Scott, of the Harvard Law School, was the reporter. Professor Bogert, of the University of Chicago Law School, was a member of the Institute's Committee on Trusts. Since 1927, therefore, when the Institute began work on the Restatement of Trusts, Professor Bogert apparently has been working …

What Should The American Law Institute Do?, Hessel E. Yntema

Michigan Law Review

It will generally be agreed, I believe, that the creation of the American Law Institute in 1923 was one of the most hopeful events in the recent legal history of this country. The plan for the Institute, as formulated in the impressive report which motivated its establishment, was well-conceived, broad-visioned, and based upon a comprehensive analysis of the chief defects in the legal system of the United States. This plan was significant in at least three important respects. In the first place, it defined an ambitious and, in some respects, a unique task for the Institute to accomplish; the report …

A Proposed Plan Of Classification For The Law, Charles C. Ulrich

Michigan Law Review

One of the greatest needs of the law today is a satisfactory plan of classification. Whenever codes have been drafted, or digests and encyclopedias of the law compiled, from the time of the Romans to the present, the first problem that presented itself was always that of classification. The question of classification was considered when the work of the American Law Institute was begun and the restatement of the law attempted, though it does not seem to have been given the attention it merited. And despite various schemes of legal classification that have been proposed in the course of time, …

A Letter To The Lawyers Club, William W. Cook

Michigan Law Review

The scope and purposes of the law schools will in my opinion rapidly expand. And the first expansion will be the inauguration of legal research. You have led the way. You have the first and so far the only research professorship. Professor Sunderland has blazed the trail and is hewing a road through the wilderness. And I think he is laying out the right route.